The rationale behind the doctrine of vexatious litigation is to maintain the efficiency of the judicial system, whilst preserving the fundamental right of all citizens to seek justice. However, when a person is abusing this process, they can waste valuable resources of the court. This can be problematic at a systemic level, as access to justice can be restricted more broadly as scarce court resources are used to deal with baseless claims.
To overcome this issue, the Vexatious Proceedings Act 2008 (NSW) (“The Act”) governs the requirements where a person is to be declared a vexatious litigant. If a person is declared a vexatious litigant, they may lose their right to institute proceedings without restriction, through becoming subject to a vexatious proceedings order. The effect of such an order being made may vary. This can mean that a person is no longer entitled to bring proceedings that name a specific person or party, without first seeking leave to do so.
A vexatious proceedings order can be made under s 8 of The Act where a person is deemed to have repeatedly instituted proceedings that are baseless or for improper purposes. This may include a litigant targeting another person, an organisation, a solicitor, a previous employer, etc.
In the recent case of Wang v Purpose Pty Ltd t/as Botany View Hotel [2021] NSWCA 10, the NSW Appellate Court upheld the decision of the NSW Supreme Court to declare Mr Wang a vexatious litigant and to impose a vexatious proceedings order that restricted Mr Wang from initiating any further proceeding that involved Mr Vaughan. Mr Wang had initiated many proceedings against Mr Vaughan, of which besides a request for an extension of time for an application of a costs assessment, he had been unsuccessful on every occasion.
Thus, the court held that Mr Wang had ‘frequently’ initiated proceedings that lacked merit against Mr Vaughan, satisfying the threshold required under s8(1)(a) of the Act. In making this finding, the proceedings must also satisfy the definition of ‘vexatious proceedings’ per s 6 of The Act.
Frequency is a term that must be defined with reference to context, and it is important to note that successive attempts at litigation does not necessarily mean a person is to be considered a vexatious litigant and subsequently should be subject to a vexatious proceedings order. Restricting access to the judicial system is a very serious matter that must be considered carefully with reference to the Vexatious Proceedings Act and leading cases on point.